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1995 DIGILAW 551 (KAR)

SHANAZ BEGUM v. REHANA BEGUM

1995-11-08

M.B.VISHWANATH

body1995
M. B. VISHWANATH, J. ( 1 ) BOTH counsel present. Heard. Admitted. ( 2 ) IN this revision petition filed by the revision-petitioners-tenants the order passed by the learned additional small cause judge on 29-9-1995 in hrc No. 3398 of 1982 rejecting the la. No. 19 filed by the revision-petitioners-tenants under order 6, Rule 17 CPC, has been challenged. ( 3 ) THE facts which are necessary to note are: the landlady filed eviction petition against the tenant (since deceased by lrs) under Section 21 (l) (h) of the Karnataka Rent Control Act. This petition came to be dismissed by the learned small causes judge. Thereupon, the landlady filed a revision petition crp No. 448 of 1989 before this court. This court allowed the revision petition in part and set aside the order of the lower court dismissing the eviction petition. This court held that the claim of the landlady was bona fide and reasonable and that the hardship that the tenant would suffer in case eviction is granted would not be greater than the hardship that the petitioner-landlady would be put to if her eviction petition was rejected. After allowing the petitioner as stated herein this court remanded the matter as follows:"the matter is remitted to the lower court to consider the question of partial eviction after permitting both sides to adduce any evidence in that regard and then to pass suitable orders". ( 4 ) FROM the remand order it is clear that the lower court was directed to consider the question of partial eviction after permitting both the parties to adduce evidence only with regard to partial eviction and then pass suitable orders, ( 5 ) AFTER the matter was remanded, the revision-petitioner tenant filed i. a. no. 19 under order vi, Rule 17, CPC requesting the court for amendment to the effect that the landlady had constructed a 2nd floor with all requirements like kitchen, etc. And that this 2nd floor is suitable and convenient for the residents of the petitioner and hence the alleged need of the landlady was "exhausted". The further amendment prayed for was that it is false to say that the landlady had handed over possession of another premises bearing No. 154, ksrtc layout, jp nagar, ii stage, Bangalore. And that this 2nd floor is suitable and convenient for the residents of the petitioner and hence the alleged need of the landlady was "exhausted". The further amendment prayed for was that it is false to say that the landlady had handed over possession of another premises bearing No. 154, ksrtc layout, jp nagar, ii stage, Bangalore. ( 6 ) THE learned small causes judge has passed a considered order dated 29-9-1995 rejecting the amendment application i. a. No. 19 filed by the revision-petitioner-tenant on the ground that the amendment, if allowed, would travel outside the scope of remand order. This order has been challenged in this revision petition as has already been stated. ( 7 ) I have set out above the order of remand passed by this court, that remand order is absolutely clear. It says that both parties shall adduce evidence only in regard to partial eviction and after such evidence is recorded the learned small causes judge should pass an order only with regard to the partial eviction. ( 8 ) THE sum and substance of the amendment application filedby the revision petitioners tenants in the lower court was to take into consideration the subsequent events. ( 9 ) IN a similar situation this court has laid down in the civil revision petition hrrp No. 435 of 1995 disposed of on 28-3-1995. (Mohammed Ghouse v C. S. Nageshwara Rao) that, when the. Matter is remanded by this court for the purpose of ascertaining the feasibility and practicability of the division of the petition schedule premises, it is to be understood that it would not be open to the parties to reopen the matter under the guise of subsequent events with a view to nullify" the effect of bona fide and reasonable requirement. ( 10 ) TO repeat, the remand order passed by this court is arestricted remand order. It directed the lower court to go into the question of partial eviction only. ( 10 ) TO repeat, the remand order passed by this court is arestricted remand order. It directed the lower court to go into the question of partial eviction only. It has been laid down by this court in K. Veerabasappa v The Court of District Judge at chitradurga and others, as follows:"where a superior court has passed a restricted order of remand pertaining to a particular issue and none of the parties had urged for open remand it is not open to any of the parties or for any court to enlarge the scope of the remand order that too by a side window. If such a course is permitted, it is destructive of all judicial discipline and will strike at the very root of the efficacy and binding nature of an order of a superior court on the parties to a dispute and the necessity of a subordinate court to faithfully implement an order of the superior court". it further observed:". . . In proceedings on an application under the Karnataka Rent Control Act (22 of 1961), for eviction of tenant on ground of bona fide requirement of landlord, restricted order of remand was passed by the high court directing the trial court to enquire and decide on one and only issue as to whether the area already in possession of the land lord on the first floor was suitable or not to run his business. Held, the only course open to the trial court was to decide the issue as to suitability of the first floor. . . ". ( 11 ) IN my opinion these two decisions of this court are on all fours with the facts of the present case. ( 12 ) THE learned counsel for the revision-petitioners relied Onpanchdeo Narain Srivastava v K. M. Jyoti Sahay and another. This relates to an amendment to be made by a party to withdraw or explain an admission made by him. The Supreme Court held, such an amendment can be allowed. The learned counsel next relied on M/s. Variety Emporium v V. R. M. Mohd. Ibrahim naina. In this authority, the Supreme Court has been pleased to lay-down that in an eviction petition subsequent events should be taken into consideration. The learned counsel next relied on Amarjit Singh v Smt. Khatoon Quamarain. This decision lays down the philosophy and principle of rent restriction law. Ibrahim naina. In this authority, the Supreme Court has been pleased to lay-down that in an eviction petition subsequent events should be taken into consideration. The learned counsel next relied on Amarjit Singh v Smt. Khatoon Quamarain. This decision lays down the philosophy and principle of rent restriction law. He next relied on the decision of this court in T. N. Shankararao and Bros, v S. A. Wajid. In this decision, this court has laid down that the court has to decide that the land lord's need was reasonable and bona fide after objective assessment of the evidence in the case. The learned counsel next relied on the decision in Pasupuleti Venkateswarlu v The Motor and General Traders. In this decision the Supreme Court has been pleased to lay down that the subsequent events, in rent control proceedings under the Rent Control Act should be taken note of by the revisional court. The last decision relied upon by the learned counsel for the revision-petitioners-tenants is Its Limited v Gunashekar V. And others. It has been laid down by this court that:"the court which has to grant or refuse amendment of the pleadings should necessarily see whether the amendment has the effect of changing the cause of action and the nature of the suit. It may also see if any prejudice is caused to the defendants or the plaintiff, as the case may be, by allowing or refusing the amendment. If it has the effect of changing the nature of the suit and the cause of action, an amendment of the plaint must be refused. But if the amendment does not change the cause of action but does no more than place additional material facts which go to support the relief prayed for on the same cause of action, it should be allowed. The only test that is to be applied is whether the pleading of such additional facts would prejudice the defence". ( 13 ) IN none of the decisions cited by the learned counsel for the petitioners tenants has it been laid down that when it comes to subsequent events, even after restricted remand, the lower court can travel outside the impugned order and allow the parties to incorporate the plea with regard to subsequent events. I am of the opinion that none of the decisions relied upon by the learned counsel for the revision-petitioners is applicable. I am of the opinion that none of the decisions relied upon by the learned counsel for the revision-petitioners is applicable. If the amendment is allowed it will have the effect of nullifying the remand order passed by this court. While remanding the matter, this court has held that the requirement of the landlady is reasonable and bona fide and directed the lower court only to go into the question of partial eviction. If the amendment is allowed it will have the effect of nullifying the remand order passed by this court. ( 14 ) FOR the aforesaid reasons, the learned small causes judge was right in confining him self to the remand order passed by this court and rejecting the amendment prayed for by the tenants in la. No. 19. The revision petition is rejected. --- *** --- .